The Constitution does not just demand popular engagement around policing. It also limits what government can do. The Fourth Amendment, the most pertinent part of the Constitution when it comes to policing, prohibits “unreasonable searches and seizures.” The Equal Protection Clause also plays a role: it provides a strong rule against discrimination.
This part explains how the Constitution’s primary safeguards apply to policing. Chapter 5 talks about warrants: why they are necessary and how modern technology makes getting them in advance of police action much easier. Chapter 6 explains that much of what has gone wrong with policing—from stop-and-frisk to overly aggressive drug interdiction—has occurred because the courts were not taking the Constitution’s requirement of “probable cause” seriously. Chapter 7 turns to the new policing; it offers a clean and easily applied understanding of how the Constitution’s two-hundred-plus-year-old safeguards should govern modern tactics like drunk-driving roadblocks, administrative inspections of businesses, drug interdiction, and airport security. Finally, Chapter 8 tackles the pervasive problem of profiling—racial and otherwise.
A not insubstantial part of what’s wrong with policing today results from a failure of courts to implement what the Constitution requires. In light of the last part’s critique of courts, one might reasonably wonder: Can we ever depend on courts to get this right? That’s a fair question, but there is a reason for hope.
First, the courts may be more open to the argument here than it seems at first blush. Policing has changed in dramatic ways over the last decades. Though the courts have tried to keep up, they have not quite understood how the Constitution should apply to the new policing. On many occasions, judges have gotten things wrong not so much because of reluctance or recalcitrance as simple confusion. Often they are not far off, and with a few course corrections by the judiciary, the constitutional law of policing would look quite different.
Second, the Constitution is not just for the courts, though we have fallen into the habit of thinking so. All government actors must adhere to the Constitution’s requirements, even if the judges are not doing their job. The points about the Constitution made in this part are as much for policing officials and legislatures as they are for the courts. Policing agencies and legislative bodies should stop assuming that if the courts say something is constitutional, it is fine to go ahead and do it. That is precisely what has led to the realization today that too much policing is “lawful but awful.” Policing officials in particular should ask themselves whether what they are about to do really is consistent with how they believe the Constitution should operate.
Finally, every citizen ought to have an understanding of what the Constitution requires. There is plenty of evidence that not only government officials but courts as well fall into line with popular understandings about constitutional meaning. This means that the public should have a certain constitutional literacy regarding policing. Part II is about connecting the time-honored principles of the Constitution to the new order of policing.